COURT OF APPEAL FOR ONTARIO

CITATION: Trinity Western University v. The Law Society of Upper Canada,

2016 ONCA 518
DATE: 20160629
DOCKET: C61116
MacPherson, Cronk and Pardu JJ.A.
BETWEEN
Trinity Western University and Brayden Volkenant
Applicants (Appellants)
and
Law Society of Upper Canada
Respondent (Respondent)
Robert W. Staley, Derek J. Bell and Ranjan K. Agarwal, for the appellants
Guy J. Pratte, Nadia Effendi and Duncan Ault, for the respondent
Gerald D. Chipeur, Q.C. and Grace Mackintosh, for the intervener the Seventhday Adventist Church in Canada
Daniel C. Santoro and Joshua Tong, for the intervener the Justice Centre for
Constitutional Freedoms
Albertos Polizogopoulos, for the interveners the Evangelical Fellowship of
Canada and Christian Higher Education Canada
Andre Marshall Schutten, for the intervener the Association for Reformed Political
Action (ARPA) Canada
Derek B.M. Ross and John R. Sikkema, for the intervener the Christian Legal
Fellowship
Marlys Edwardh, Frances Mahon and Paul Jonathan Saguil, for the interveners
Out on Bay Street and OUTlaws

Page:2

Arden Beddoes, for the intervener the Canadian Secular Alliance

Susan Ursel and David Grossman, for the intervener the Canadian Bar
Association
Gavin Magrath, for the intervener Lawyers' Rights Watch Canada
Alan L.W. D'Silva and Alexandra Urbanski, for the intervener the Canadian Civil
Liberties Association
Chris Paliare and Joanna Radbord, for the intervener the Advocates' Society
John Norris, for the intervener the Criminal Lawyers' Association (Ontario)
Heard: June 6 and 7, 2016
On appeal from the order of the Divisional Court (Associate Chief Justice Frank
N. Marrocco, Justice Edward F. Then and Justice lan V. B. Nordheimer) dated
July 2, 2015, with reasons reported at 2015 ONSC 4250, 126 O.R. (3d) 1.

MacPherson J.A.:

A.

INTRODUCTION

[1]

The Canadian Charter of Rights and Freedoms, enacted by the Canada

Act 1982 (U.K.), c.11, has been a part of the Canadian Constitution since 1982.

In 22 succinct sections (2-23), the Charter protects the rights and freedoms of all
Canadians in six domains - fundamental, democratic, mobility, legal, equality
and linguistic.
[2]

In the early years of the Charter, the Supreme Court of Canada strove to

interpret all these rights and freedoms in a broad fashion. One of the

Page:3

consequences of a broad definition of rights and freedoms is the possibility that

they will collide with other important values in Canadian society.
[3]

One category of collision is well-known in the 34-year history of the

Charter. The rights and freedoms in the Charter, broadly defined, may collide

with important government objectives (security, health, the economy, etc.). This
type of collision happens frequently and is resolved by meshing the interpretation
of the right or freedom with the limitation in s. 1 of the Charter.
[4]

A second category of collision occurs more rarely. It is a collision between

the broad interpretation of two rights or freedoms. This appeal, involving a clash
between religious freedom and equality, is an example of this second category of
collision.
[5]

Trinity Western University ("TWU") is a longstanding, respected private

university in British Columbia. Its mandate is anchored in an underlying

evangelical Christian philosophy. Part of its religious philosophy includes a strong
opposition to same-sex relationships and marriages,

and common law

relationships outside marriage.

[6]

TWU wants to establish a law school. Although members of the lesbian,

gay, bisexual, transgender and queer ("LGBTQ") community may apply to the
proposed law school, they will not be admitted unless they are willing to sign and
adhere to TWU's Community Covenant, described below, which forbids sexual

Page:4

intimacy except between married heterosexual couples. The consequence is that

LGBTQ students are discriminated against in terms of admission to, and life at,
TWU. TWU, on the other hand, says that its Community Covenant is protected
by its right to freedom of religion.
[7]

This appeal arises from a decision by the Law Society of Upper Canada

("LSUC") on the accreditation of TWU's proposed law school. TWU wants to be

sure that its graduates will be eligible to be called to the bar throughout Canada,
and so it has applied to the provincial law societies, including the LSUC, for
accreditation of its proposed law school.
[8]

Six law societies have granted accreditation - Alberta, Saskatchewan,

Manitoba, New Brunswick, Prince Edward Island, and Newfoundland and

Labrador. To my knowledge, there have not been any court proceedings in the
six provinces where accreditation has been granted.
[9]

Three law societies have refused accreditation - British Columbia, Nova

Scotia, and Ontario. The law society decisions refusing accreditation in British
Columbia and Nova Scotia were overturned by superior court decisions in both
provinces: see Trinity Western University v. Law Society of British Columbia,
2015 BCSC 2326, 392 D.L.R. (4th) 722, and Trinity Western University v. Nova

Scotia Barristers' Society, 2015 NSSC 25, 381 D.L.R. (4th) 296. These decisions

Page:5

have been appealed; the Nova Scotia appeal was heard in April 2016 and the
British Columbia appeal was heard in June 2016.
[1 0]

In Ontario, by virtue of a 28-21 vote on April 24, 2014, the benchers of the

LSUC denied accreditation to TWU's proposed law school.

[11]

TWU sought judicial review of this decision. In reasons released on July 2,

2015, a three-judge panel of the Divisional Court dismissed the application for
judicial review.
[12]

TWU appeals from the Divisional Court decision. As will be seen, the crux

of the appeal involves a collision between freedom of religion and equality, both
of which are protected in the Charter and both of which have been defined and
interpreted in a generous fashion by the Supreme Court of Canada.
[13]

In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Dickson C.J. said, at p.

336:
A truly free society is one which can accommodate a
wide variety of beliefs, diversity of tastes and pursuits,
customs and codes of conduct. A free society is one
which aims at equality with respect to the enjoyment of
fundamental freedoms ....
[14]

The challenge in this appeal is considering the balance between freedom

of religion on the one hand and equality in the context of sexual orientation on
the other hand. Who strikes the balance and what is it?

Page:6

B.

FACTS
(1)

The parties and events

(a)

[15]

TWU

TWU is a private Christian university in Langley, British Columbia. It is said

to be an arm of the Evangelical Free Church of Canada, which is a Protestant

Christian denomination.
[16]

TWU was established in 1962. In 1969, the Trinity Junior College Act,

S.B.C. 1969, c. 44, was enacted. It stated that TWU's education is to be provided
"with an underlying philosophy and viewpoint that is Christian."
[17]

TWU was recognized as a degree-granting institution in 1979. In 1985 its

name was changed to its current name and it was authorized to offer graduate
degrees.
[18]

TWU now offers more than 50 undergraduate and graduate programs,

including professional programs in business, education, nursing, and counselling

psychology, to its student body of approximately 4,000 students.
[19]

TWU adheres to the Association of Universities and Colleges of Canada's

policy on Academic Freedom.

[20]

TWU has a Mission Statement that is central to its operations and

programs:

Page:?

The mission of Trinity Western University, as an arm of

the Church, is to develop godly Christian leaders:
positive, goal-oriented university graduates with
thoroughly Christian minds; growing disciples of Jesus
Christ who glorify God through fulfilling the Great
Commission, serving God and people in the various
marketplaces of life.
[21]

TWU, consistent with evangelical Christianity, affirms that the Bible is the

authoritative and divinely-inspired word of God and that people reach their fullest
potential by participating in a community committed to the observation of Biblical
teachings. This belief is foundational to TWU's approach to education and
community development and finds expression in a document titled "Trinity
Western

University

Community

Covenant

Agreement"

(the

"Community

Covenant" or "Covenant").
[22]

All TWU students must read, understand and agree to abide by the terms

of the Community Covenant. The document is a code of conduct that embodies

TWU's evangelical Christian religious values. In agreeing to abide by the
Covenant, members of the TWU community (administrators, faculty, students
and staff) commit themselves to virtues such as love, joy, peace, patience,
kindness, goodness, faithfulness, gentleness, self-control, compassion, humility,
forgiveness, peacemaking, mercy and justice.
[23]

Under the heading "Community Life at TWU", the Community Covenant

stipulates that community members must abstain from various activities,

Page:

including "sexual intimacy that violates the sacredness of marriage between a

man and a woman."
[24]

Under the heading "Healthy Sexuality", the Community Covenant states

that "according to the Bible, sexual intimacy is reserved for marriage between
one man and one woman."
[25]

These provisions flow from the evangelical Christian tradition that defines

marriage as an exclusive, lifelong, covenantal union of male and female. Parts of

the Bible are interpreted as the foundation for this belief. Accordingly, same-sex
intercourse and marriage are believed to be contrary to Biblical teaching and are,
therefore, morally unacceptable.
[26]

While TWU teaches from a Christian perspective, it permits students to

hold and express diverse opinions on moral, ethical and religious issues,
including same-sex relationships, even if they conflict with TWU's religious
beliefs and positions.
[27]

TWU does not ban admission to LGBTQ students and there are students

from that community at TWU. The Community Covenant prohibits any form of
harassment, including harassment on the basis of sexual orientation.
[28]

TWU does not actively seek out cases of non-compliance with the

Community Covenant but complaints about non-compliance can be made.

Discipline may include expulsion.

Page:9

(b)
[29]

Brayden Volkenant

Brayden Volkenant is a graduate of TWU's Bachelor of Arts (Business

Administration) program. He is an evangelical Christian and so he already

believed in many of the values expressed in the Community Covenant when he
went to TWU. As a TWU student, he acknowledged and accepted the terms of
the Covenant. Mr. Volkenant's preference would have been to attend TWU's
proposed law school, but he has now enrolled at the University of Alberta's
Faculty of Law. He is interested in practising law in Ontario after graduating from
law school.
(c)
[30]

The LSUC's Mandate

The LSUC was created by Imperial statute in 1797: An Act for the better

regulating the Practice of the Law, S.U.C. 1797 (37 Geo. Ill), c. XIII.

[31]

In 1877, the LSUC was given the authority to improve legal education,

including making rules with respect to the admission of students-at-law,

conditions of study, and admission to the practice of law.
[32]

In 1912, the LSUC was given the authority to establish and maintain a law

school.
[33]

In 1957, the LSUC agreed to allow Ontario universities to develop an LL.B.

program. Until that point, the LSUC had maintained a monopoly on legal studies
that led to admission to the Ontario bar.

Page: 10

[34]

Since 1957, the LSUC has retained authority over admission to the

profession. No person can practise law in Ontario without a licence and the
LSUC has the exclusive authority to establish the requisite classes of licence. As
well, under the Law Society Act, R.S.O. 1990, c. L.8 ("LSA"), the LSUC has the
exclusive authority to prescribe qualifications and requirements to obtain a
licence to practise law in Ontario. These grants of authority are in keeping with
the LSUC's obligation under s. 4.1 of the LSA to ensure that all lawyers
practising in Ontario satisfy appropriate standards of learning, professional
competence and professional conduct. As discussed below, in carrying out its
functions, duties and powers, the LSUC must have regard to the "public interesf'
under s. 4.2 of the LSA.
[35]

Pursuant to its by-law making powers, the LSUC introduced accreditation

of law schools as part of its licensing process. By-law 4 prescribes that one of the
requirements for a class L1 licence to practise law is a degree from "an
accredited law school." An "accredited law school" is defined as a "law school in
Canada that is accredited by the Society."
(d)
[36]

Federation of Law Societies of Canada Process

In 2010, all the Canadian law societies agreed to give the Federation of

Law Societies of Canada's Canadian Common Law Program Approval

Committee ("Federation Approval Committee") the power to review new common

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law degree programs to ensure that graduates are adequately prepared for
admission to the bar.
[37]

In June 2012, TWU submitted its proposal to the Federation Approval

Committee for a law school to open in September 2015 (later amended to

September 2016). The Federation Approval Committee granted preliminary
approval to TWU in December 2013.
[38]

In the meantime, the Federation established a Special Advisory Committee

with a mandate to advise on this question:

What additional considerations, if any, should be taken
into account in determining whether future graduates of
TWU's proposed school of law should be eligible to
enroll in the admissions program of any of Canada's law
societies, given the requirement that all students and
faculty of TWU must abide by TWU's Community
Covenant Agreement as a condition of admission and
employment, respectively?
[39]

The Special Advisory Committee concluded that there was "no public

interest reason to exclude future graduates of the program from law society bar
admissions programs."

(e)
[40]

The LSUC's Process

In January 2014, TWU asked the LSUC to accredit its law school.

Page: 12

[41]

In early 2014, the Treasurer1 of the LSUC delivered a statement outlining

the process it would follow in order to arrive at a decision about TWU's request
for accreditation.
[42]

TWU was invited to provide written submissions, which it did on April 2,

2014.
[43]

The LSUC invited members of the profession and public to make

submissions. The LSUC received approximately 210 submissions.

[44]

The record also included the relevant reports of the Federation of Law

Societies of Canada and three legal opinions that the LSUC solicited: by Freya
Kristjanson on the approach to ss. 4.1 and 4.2 of the LSA; by Mahmud Jamal on
the implications of the Charter in the accreditation decision; and by Andrew Pinto
on the relevance of the Human Rights Code, R.S.O. 1990, c. H.19 ("HRC').
[45]

On April 10, 2014, the benchers of the LSUC, in Convocation, discussed

accrediting the proposed law school. They also posed questions to the TWU
representatives who were present at the meeting.
[46]

On April 22, 2014, TWU provided written reply submissions to some of the

issues raised at the April 10 meeting.

In Ontario, the 'Treasurer' is the head of the LSUC and is elected every year.

 Page: 13

[47]

On April 24, 2014, the LSUC held a final meeting. The Secretary posed

this question:
Given that the Federation Approval Committee has
provided preliminary approval to the Trinity Western
University law program, in accordance with processes
Convocation approved in 2010 respecting the national
requirement and in 2011 respecting the approval of law
school academic requirements, should the Law Society
of Upper Canada now accredit Trinity Western
University pursuant to section 7 of by-law 4?
[48]

The President of TWU, Bob Kuhn, then addressed Convocation. He spoke

for about an hour and a half, concluding with:

I urge you to decide this matter in a manner consistent
with the rule of law and every other authority that has
considered the fate of Trinity Western University's law
school, and I commend that decision to you in the good
faith that you will see your task as upholding the rule of
law and upholding the place of religious freedom in this
country.
[49]

For the rest of the day, many benchers spoke and declared their positions.

Late in the afternoon, the vote was called. The question set out above was
answered: Yes - 21; No - 28; Abstention - 1. The LSUC decided not to accredit
the proposed TWU law school.
[50]

(2)
[51]

TWU brought an application for judicial review of the LSUC decision.

The Divisional Court Decision

The Divisional Court dismissed TWU's application for judicial review. The

key components of its reasons, which were "By the Court", are:

Page: 14

(1)

the appropriate standard of review of the LSUC decision is

reasonableness;

(2)

when deciding whether to accredit a law school, the LSUC is not

restricted simply to considering standards of competence; a broader
spectrum of considerations with respect to the public interest is
engaged;

(3)

the decision of the Supreme Court of Canada in Trinity Western

University v. British Columbia College of Teachers, 2001 SCC 31,

[2001] 1 S.C.R. 772 ("TWU 2001'), is not determinative of the

application for judicial review;
(4)

the LSUC decision not to accredit TWU's proposed law school

infringes TWU's and Mr. Volkenant's freedom of religion under s.
2{a) of the Charter;

(5)

in assessing the "public interest", the LSUC is entitled to consider

that the impact of TWU's Community Covenant on members of the
LGBTQ community is contrary to the equality rights protections in
the Charter and the HRC; and

(6)

the LSUC engaged in a proportionate balancing of the rights at play

- freedom of religion and equality - and its decision refusing to
accredit TWU's proposed law school is, therefore, reasonable.

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C.

ISSUES

[52]

The issues on this appeal are:

{1)

Is the decision of the Supreme Court of Canada in TWU 2001

determinative of this appeal?

{2)

Was the Divisional Court correct in applying a reasonableness standard of

review?

{3)

Applying the relevant standard of review, did the Divisional Court err in:
(a)

its interpretation of the LSUC's statutory mandate in ss. 4.1 and 4.2 of
the LSA; and

(b)

its conclusion that the LSUC engaged in a proportionate balancing of

freedom of religion and equality and made a reasonable decision by
refusing to accredit TWU's proposed law school?

[53]

In their factum, the appellants also submit that the LSUC's decision

infringes the appellants' s. 2(b) right to freedom of expression and s. 2(d)

associational rights. In oral argument, however, their focus was on freedom of
religion. In light of my conclusion on freedom of religion, I need not address the
appellants's. 2(b) and s. 2(d) arguments.

Page: 16

D.

ANALYSIS
(1)

[54]

The TWU 2001 decision

Before the Divisional Court, the appellants argued that the Supreme Court

of Canada's decision in TWU 2001 was binding and determinative of the judicial
review application. The Divisional Court rejected this submission.
[55]

On the appeal, the appellants advanced this argument in their factum,

albeit very briefly (three paragraphs). In response to a question in oral argument,

counsel stated that the appellants did not explicitly abandon the argument but
would rest on the submissions in their factum.
[56]

Given that the appellants failed to press this issue in oral argument, the

respondent touched on it only very briefly in its oral argument and the
interveners, some of whom discussed it thoroughly in their factums, moved on to
other points in their oral submissions.
[57]

In short, TWU moved away from its earlier categorical position that TWU

2001 was determinative of the outcome of the appeal. In my view, this

development was a welcome one. I agree with the Divisional Court's reasoning
and conclusion on this issue, at paras. 59-72. As the Divisional Court stated, at
para. 60, "[t]he issue raised before the Supreme Court of Canada in [TWU 2001]
involved different facts, a different statutory regime, and a fundamentally different
question."

Page: 17

[58]

There is an additional reason that TWU 2001 does not dispose of this

appeal. The British Columbia College of Teachers denied accreditation on the

basis that the Community Covenant might affect TWU graduates' ability to teach
in public schools in a non-discriminatory manner. In contrast, the LSUC accepts
that TWU graduates would not be at any more risk of discriminating because of
the Community Covenant than graduates of other law schools. Rather, it argues
that it is not in the public interest to accredit a law school that prevents access
through a discriminatory policy. In other words, the regulator's argument in this
case is different than the argument addressed by the Supreme Court in TWU
2001.

[59]

I make a final comment on this issue. Although TWU 2001 is not

determinative of this appeal, I agree with the Divisional Court's observation, at

para.72, ''that is not to say that the decision in [TWU 2001] is not an important
consideration in the resolution of the issues that are presented to us." For
example, in TWU 2001 the Supreme Court expressed views about balancing
freedom of religion and equality rights in a sexual orientation context that are
directly relevant to this appeal.
(2)
[60]

Standard of review
Before the Divisional Court and in their appeal factum, the appellants took

the position that the question whether a professional licensing body is justified in

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rejecting TWU based on its religious beliefs had already been decided on a
standard of correctness in TWU 2001. In the alternative, they argued that if TWU
2001 is not determinative, the correctness standard applies to at least parts of

the LSUC's decision because it raises questions about the scope of the LSUC's
jurisdiction and engages important questions of law that are outside of its
expertise. Finally, the appellants argued that the lack of reasons militates in
favour of a correctness standard.
[61]

While the appellants did not abandon their arguments on correctness in

oral argument at the appeal hearing, they did not push them. Instead, they
advanced a forceful submission that the LSUC's decision was unreasonable.
[62]

In my view, this change of tack was warranted. TWU 2001 was decided at

a time when, in the administrative law context, there were three standards of
review- correctness, reasonableness simpliciter and patent unreasonableness.
[63]

After TWU 2001, in Law Society of New Brunswick v. Ryan, 2003 SCC 20,

[2003] 1 S.C.R. 247, at para. 62, Iacobucci J. adopted a reasonableness

simpliciter standard in reviewing a sanction imposed for professional misconduct:

Although there is a statutory appeal from decisions of

the Discipline Committee, the expertise of the
Committee, the purpose of the enabling statute, and the
nature of the question in dispute all suggest a more
deferential standard of review than correctness. These
factors suggest that the legislator intended that the
Discipline Committee of the self-regulating Law Society
should be a specialized body with the primary

Page: 19

responsibility to promote the objectives of the Act by

overseeing
professional
discipline
and,
where
necessary, selecting appropriate sanctions. In looking at
all the factors as discussed in the foregoing analysis, I
conclude
that
the
appropriate
standard
is
reasonableness simpliciter. Thus, on the question of the
appropriate sanction for professional misconduct, the
Court of Appeal should not substitute its own view of the
"correcf' answer but may intervene only if the decision
is shown to be unreasonable.
[64]

After TWU 2001 and Ryan, there was a sea change in this area of law with

the decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
that reduced the standard of review to two categories - correctness and
reasonableness.
[65]

The reasonableness standard has since been adopted as the presumptive

standard of review to be applied with respect to the decisions of professional

regulatory bodies engaged in an interpretation of their enabling statutes,
including those that regulate the legal profession.
[66]

Thus, in a case dealing with an appeal of a decision of a discipline tribunal

in the legal profession, Dare v. Barreau du Quebec, 2012 SCC 12, [2012] 1
S.C.R. 395, the court affirmed that the deferential standard set out in Ryan was
consistent with Dunsmuir principles, with Abella J. saying, at para. 30:
In Dunsmuir, the Court held that judicial review should
be guided by a policy of deference, justified on the basis
of legislative intent, respect for the specialized expertise
of administrative decision-makers, and recognition that
courts do not have a monopoly on adjudication in the
administrative state (para. 49}.

Page:20

[67]

I do not see, and the appellants do not assert, any qualitative difference

between decisions of law society discipline tribunals (Ryan and Dore1 and a
decision whether to accredit a law school. Both categories of decision are in the
wheelhouse of the expertise of the law society.
[68]

Nor can the fact that the LSUC's decision in this case required a careful

analysis and balancing of the appellants' Charter rights with other Charter values
remove the standard of review from the reasonableness category. Administrative
tribunals are entitled, indeed required, to take account of, and try to act
consistently with, Charter values as they make decisions within their mandate:
see Dare, at para. 24, and Loyola High School v. Quebec (Attorney General),
2015 SCC 12, [2015] 1 S.C.R. 613, at para. 37. The balancing of Charter rights
and values does not in and of itself take a decision outside of the expertise of an
administrative tribunal. Here, the LSUC's accreditation decision, which took into
account Charter rights and values, was within the LSUC's expertise.
[69]

Contrary to the appellants' assertions, there is no true question of

jurisdiction here. For reasons I will elaborate below, the LSUC's decision not to
accredit TWU fell squarely within its statutory mandate to act in the public
interest. For this reason as well, no general question of law of central importance
and outside the LSUC's specialized area of expertise arises in this case.

Page:21

[70]

Finally, the adequacy of an administrative tribunal's reasons is not a

"stand-alone basis for quashing a decision": Newfoundland and Labrador Nurses'

Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3

S.C.R. 708, at para. 14. It also does not change the applicable standard of
review. While the nature of the reasons certainly can have a bearing on whether
a decision meets the requirement for justification, transparency and intelligibility,
set out in Dunsmuir, at para. 47, it does not subject a decision that would
otherwise be reviewed on the reasonableness standard to a review for
correctness.
[71]

For these reasons, I conclude that the Divisional Court was correct to hold

that the appropriate standard of review with respect to the LSUC's accreditation
decision was reasonableness.
(3)
[72]

The LSUC's decision - reasonable?

The appellants contend that the LSUC's decision not to accredit TWU's

proposed law school was unreasonable in two respects: (1) it flowed from an
overly expansive interpretation of ss. 4.1 and 4.2 of the LSA, and (2) it was
based on a flawed balancing of the competing Charter rights and values freedom of religion and equality.
[73]

I will consider these submissions in turn. I do so mindful of the definition

and implications of the reasonableness standard of review.

Page:22

In my view, Dunsmuir remains the leading case on the definition of

[74]

reasonableness. Bastarache and LeBel JJ. stated, at para. 47:

Reasonableness is a deferential standard animated by
the principle that underlies the development of the two
previous standards of reasonableness: certain
questions that come before administrative tribunals do
not lend themselves to one specific, particular result.
Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of
appreciation within the range of acceptable and rational
solutions. A court conducting a review for
reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial
review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility
within the decision-making process. But it is also
concerned with whether the decision falls within a range
of possible, acceptable outcomes which are defensible
in respect of the facts and law.
[75]

A second case that provides a clear description of the reasonableness

standard and its implications is Ryan, wherein Iacobucci J. said, at paras. 51 and
55-56:
There is a further reason that courts testing for
unreasonableness must avoid asking the question of
whether the decision is correct. Unlike a review for
correctness, there will often be no single right answer to
the questions that are under review against the
standard of reasonableness. For example, when a
decision must be taken according to a set of objectives
that exist in tension with each other, there may be no
particular trade-off that is superior to all others. Even if
there could be, notionally, a single best answer, it is not
the court's role to seek this out when deciding if the
decision was unreasonable.

Page:23

A decision will be unreasonable only if there is no line of

analysis within the given reasons that could reasonably
lead the tribunal from the evidence before it to the
conclusion at which it arrived. If any of the reasons that
are sufficient to support the conclusion are tenable in
the sense that they can stand up to a somewhat probing
examination, then the decision will not be unreasonable
and a reviewing court must not interfere. This means
that a decision may satisfy the reasonableness standard
if it is supported by a tenable explanation even if this
explanation is not one that the reviewing court finds
compelling.
This does not mean that every element of the reasoning
given
must independently pass
a test for
reasonableness. The question is rather whether the
reasons, taken as a whole, are tenable as support for
the decision. At all times, a court applying a standard of
reasonableness must assess the basic adequacy of a
reasoned decision remembering that the issue under
review does not compel one specific result. Moreover, a
reviewing court should not seize on one or more
mistakes or elements of the decision which do not affect
the decision as a whole. [Citations omitted.]
[76]

With these definitions and comments in mind, I turn to the LSUC decision

and the Divisional Court's review of that decision.

[77]

The Divisional Court found that the LSUC's decision not to accredit TWU's

proposed law school infringed the appellants' freedom of religion. However, the
decision was saved because the LSUC engaged in a proportionate balancing of
the Charter rights and values in play (freedom of religion and equality) and
reached a reasonable decision.

Page:24

[78]

The appellants agree with the Divisional Court's conclusion about the

infringement of their freedom of religion. They disagree with the conclusion about
proportionate balancing.
[79]

In assessing the reasonableness of the LSUC's decision, this court must

consider it in the context of (i) the appellants' Charter rights at stake; (ii) the
LSUC's statutory objectives; and (iii) whether the decision represents a
reasonable balance between the two: see Dore, at paras. 55-58.

(a)
[80]

The appellants' Charter rights

The Divisional Court found, at para. 81, that the LSUC's decision infringed

the appellants' freedom of religion:

[W]e are nonetheless satisfied that the decision of the
respondent does amount to an infringement of the
applicants' rights to freedom of religion. We reach that
conclusion by applying a broad interpretation of those
rights - one that is consistent with the jurisprudence on
the subject.
[81]

In its factum the LSUC argued, briefly, that the appellants' Charters. 2(a)

freedom of religion is not engaged.

[82]

However, in the course of oral argument, the LSUC moderated its position,

and made it clear that its primary submission was that any limitation on the
appellants' freedom of religion was reasonable.

Page: 25

[83]

I agree with the Divisional Court's conclusion and the LSUC's position

taken in oral argument on this issue. However, since the question of infringement
is a key competent of the Dore analysis, I offer my own reasoning on this issue.
[84]

The first step in analyzing the LSUC's decision requires this court to

consider whether the decision "engages the Charter by limiting its protections":
see Loyola, at para. 39. The question to be asked in this context is whether the
decision has the effect of "interfering with the individual's freedom of conscience
and religion, that is, impeding the individual's ability to act in accordance with his
or her beliefs": Mouvement /ai'que quebecois v. Saguenay (City), 2015 SCC 16,
[2015] 2 S.C.R. 3, at para. 85.
[85]

The purpose of the right protected under s. 2(a) was first explored by

Dickson C.J. in Big M, at pp. 336-37:

The essence of the concept of freedom of religion is the
right to entertain such religious beliefs as a person
chooses, the right to declare religious beliefs openly and
without fear of hindrance or reprisal, and the right to
manifest religious belief by worship and practice or by
teaching and dissemination. But the concept means
more than that.
Freedom can primarily be characterized by the absence
of coercion or constraint. If a person is compelled by the
state or the will of another to a course of action or
inaction which he would not otherwise have chosen, he
is not acting of his own volition and he cannot be said to
be truly free. One of the major purposes of the Charter
is to protect within reason from compulsion or restraint.
Coercion includes not only such blatant forms of
compulsion as direct commands to act or refrain from

Page:26

acting on pain of sanction, coercion includes indirect

forms of control which determine or limit alternative
courses of conduct available to others. Freedom in a
broad sense embraces both the absence of coercion
and constraint, and the right to manifest beliefs and
practices. Freedom means that, subject to such
limitations as are necessary to protect public safety,
order, health, or morals or the fundamental rights and
freedoms of others, no one is to be forced to act in a
way contrary to his beliefs or his conscience.
[86]

In R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 759,

Dickson C.J. added: "The purpose of s. 2(a) is to ensure that society does not
interfere with profoundly personal beliefs that govern one's perception of oneself,
humankind, nature, and, in some cases, a higher or different order of being.
These beliefs, in turn, govern one's conduct and practices."
[87]

Most recently, in Saguenay, at para. 69, Gascon J. summarized the

principles originating in Big M and Edwards Books succinctly:

[F]reedom of conscience and religion protects the right
to entertain beliefs, to declare them openly and to
manifest them, while at the same time guaranteeing that
no person can be compelled to adhere directly or
indirectly to a particular religion or to act in a manner
contrary to his or her beliefs. [Citations omitted.]
[88]

To determine whether the LSUC's decision interferes with the claimants'

freedom of religion, it is necessary to apply the test for establishing a breach of s.

2(a) first set out in Syndical Northcrest v. Amselem, 2004 SCC 47, [2004] 2
S.C.R. 551, at paras. 56-57, and recently restated in Saguenay, at para. 86, as
follows:

Page:27

To conclude that an infringement has occurred, the

court or tribunal must (1) be satisfied that the
complainant's belief is sincere, and (2) find that the
complainant's ability to act in accordance with his or her
beliefs has been interfered with in a manner that is more
than trivial or insubstantial. [Citations omitted.]
[89]

In Amse/em, at para. 56, Iacobucci J. described the inquiry at the first step

of the test as follows:

Thus, at the first stage of a religious freedom analysis,
an individual advancing an issue premised upon a
freedom of religion claim must show the court that (1)
he or she has a practice or belief, having a nexus with
religion, which calls for a particular line of conduct,
either by being objectively or subjectively obligatory or
customary, or by, in general, subjectively engendering a
personal connection with the divine or with the subject
or object of an individual's spiritual faith, irrespective of
whether a particular practice or belief is required by
official religious dogma or is in conformity with the
position of religious officials; and (2) he or she is sincere
in his or her belief. Only then will freedom of religion be
triggered.
[90]

I do not hesitate in concluding that both TWU and Mr. Volkenant are

sincere in their beliefs about the benefits to the TWU community that are fostered
by the existence, adherence to, and enforcement of the Community Covenant,
and further, that Mr. Volkenant is sincere in his belief that his pursuit of higher
education taught through the lens of an evangelical Christian worldview
subjectively furthers the practice of his faith. The link between the values
enshrined in not only the Covenant but also TWU's foundational documents,

Page:28

such as its Mission Statement, and the appellants' evangelical Christian religious
belief and practice is self-evident.
[91]

It is readily apparent that Mr. Volkenant's s. 2(a) right is engaged here. As

Dickson C.J. observed in Big M, at p. 336, freedom of religion encompasses not

only the right to hold beliefs, but also "the right to manifest religious belief by
worship and practice or by teaching and dissemination." As was argued forcefully
and eloquently by counsel for the Evangelical Fellowship of Canada and
Christian Higher Education Canada, the decision to attend TWU is fundamentally
a religious one that manifests the evangelical Christian religious beliefs held by
the student.
[92]

For Mr. Volkenant, attending TWU's proposed law school would allow him

to not only practise the Covenant's values, which he would in any event be free
to do without attending TWU, but also to participate in an educational community,
consisting largely of like-minded individuals, that embraces values grounded in
evangelical Christian beliefs about the conduct both prescribed and proscribed
by the Covenant. To borrow a phrase from Amselem, at para. 56, Mr.
Volkenant's participation in such a community "subjectively engender[s] a
personal connection with the divine" over and above the connection achieved by
his own personal adherence to the Covenant's values.

Page:29

[93]

Turning to TWU, while the degree to which religious organizations can

independently claim the protection afforded by s. 2(a) has not been established
conclusively in the jurisprudence, it is clear that freedom of religion under the
Charter has a collective aspect: see Alberta v. Hutterian Brethren of Wilson
Colony, 2009 SCC 27, [2009] 2 S.C. A. 567, at para. 31; Loyola, at para. 33, per

Abella J., and, at para. 89, per Mclachlin C.J. and Moldaver J., concurring. In
Loyola, at para. 33, the majority recognized ''that individuals may sometimes

require a legal entity in order to give effect to the constitutionally protected

communal aspects of their religious beliefs and practice".
[94]

On the facts of this case, TWU's own s. 2(a) right is also engaged. The

collective aspect of freedom of religion is particularly important in the context of

the present case, where individuals such as Mr. Volkenant necessarily require an
entity to both establish a community within which members can study law from
an evangelical Christian perspective and to set and enforce the religious
practices to be followed by the law school community. It is only through TWU that
the claim to operate a degree-granting accredited law school from an evangelical
Christian perspective can possibly be advanced. In this way, TWU acts as the
vehicle through which the religious freedoms of its individual members, including
teachers, students, and staff, can be manifested, pursued and achieved. Echoing
the observations of Mclachlin C.J. and Moldaver J. in Loyola, at para. 94, here
"[t]he individual and collective aspects of freedom of religion are indissolubly

Page:30

intertwined" in that ''the freedom of religion of individuals cannot flourish without

freedom of religion for the organizations through which those individuals express
their religious practices and through which they transmit their faith."
[95]

For there to be an interference with TWU's and Mr. Volkenant's sincere

religious beliefs, the LSUC's decision to deny accreditation must have the effect
of interfering with their ability to act in accordance with those beliefs in a manner
that is more than trivial or insubstantial: see Edwards Books, at p. 759; R. v.
Jones, [1986] 2 S.C.R. 284, at p. 313-14; Amselem, at para. 57; and Saguenay,
at para. 86. Determining whether an alleged interference with freedom of religion
is more than trivial or insubstantial is a context-specific exercise, and "requires an
objective analysis of the rules, events or acts that interfere with the exercise of
the freedom": see Amselem, at para. 59; S.L. v. Commission scolaire des
Chenes, 2012 SCC 7, [2012] 1 S.C.R. 235, at para. 24.
[96]

In my view, it is premature to attempt to assess on the facts now before us

whether and to what extent there may be an interference with Mr. Volkenant's s.
2(a) Charter rights or indeed an interference with the s. 2(a) rights of any other
student who eventually graduates from TWU's law school, should they face some
alternate process to be admitted to the Bar of Ontario. I understand that currently
there is no process by which a law graduate from an unaccredited law school in
Canada could be admitted to the Ontario Bar. That does not, however, end the
inquiry.

Page:31

[97]

It must be observed here, as the LSUC argues and the Divisional Court

also observed below, that the LSUC cannot directly compel either TWU or Mr.
Volkenant to do, or not do, anything. Even absent accreditation, TWU would be
free to operate its law school in the manner it chooses and Mr. Volkenant would
be free to attend in accordance with his personal beliefs.
[98]

As Big M makes clear, at p. 337, however, s. 2(a) is concerned not only

with direct interferences with freedom of religion, but also "indirect forms of
control which determine or limit alternative courses of conduct available to
others." I accept that because the LSUC's decision would discourage individuals
like Mr. Volkenant, who may wish to eventually practise law in Ontario, from
attending TWU's proposed law school in favour of a law school accredited by the
LSUC, it would also affect TWU's ability to attract students given that Ontario is
the largest market in Canada for law graduates.
[99]

While TWU has suggested that it may not open its law school absent

accreditation by the LSUC, there is no evidence before us that the LSUC's

decision would have so dramatic an effect. The question remains, however,
whether the LSUC's decision not to accredit TWU because of the existence of
the Covenant would interfere with TWU's religious freedom in a manner that is
more than trivial or insubstantial. I accept that it would. The failure to accredit
means that TWU would face an increased burden in attracting students to its law

Page:32

school. In my view, this increased burden, while it may not go so far as to

threaten the law school's existence, cannot be said to be insignificant.
[1 00] The LSUC argued that the protection granted by s. 2(a) is limited in that
freedom of religion does not extend to practices, like the Covenant, that interfere
with the rights and freedoms of others, and so even if TWU's s. 2(a) right may be
engaged, it is not infringed. I agree that the jurisprudence establishes that
freedom of religion is not absolute and that in any Charter analysis the competing
rights of other individuals must always be taken into account: see Big M, at
p. 346; TWU 2001, at paras. 29-30; Amselem, at paras. 61-62. However, in the
context of the analysis mandated by Dare, in my view it is appropriate to adopt a
broad definition of freedom of religion at this stage of the analysis and instead
consider the impact of the exercise of that freedom on other Charter-protected
interests at the second stage of the analysis.
[1 01] Accordingly,

would

find

that

the

LSUC's

decision

infringes

Mr. Volkenant's and TWU's right to freedom of religion under s. 2(a) of the
Charter.

(b)

The statutory objectives of the LSUC

[1 02] Relying on s. 4.1 of the LSA, the appellants submit that the LSUC's
function is to ensure that Ontario's lawyers are appropriately educated,

Page:33

competent and ethical and that function, in and of itself, protects the public
interest within the meaning of s. 4.2.3.
[1 03] Sections 4.1 and 4.2 provide as follows.
4.1

It is a function of the Society to ensure that,

(a) all persons who practise in Ontario or provide legal

services in Ontario meet standards of learning,
professional competence and professional conduct that
are appropriate for the legal services they provide; and
(b) the standards of learning, professional competence
and professional conduct for the provision of a particular
legal service in a particular area of law apply equally to
persons who practise law in Ontario and persons who
provide legal services in Ontario.
4.2
In carrying out its functions, duties and powers
under this Act, the Society shall have regard to the
following principles:
1. The Society has a duty to maintain and advance the
cause of justice and the rule of law.
2. The Society has a duty to act so as to facilitate
access to justice for the people of Ontario.
3. The Society has a duty to protect the public interest.
4. The Society has a duty to act in a timely, open and
efficient manner.
5. Standards of learning, professional competence and
professional conduct for licensees and restrictions on
who may provide particular legal services should be
proportionate to the significance of the regulatory
objectives sought to be realized. [Emphasis added.]

Page:34

[1 04] I am not persuaded by the appellants' submission, which adopts a narrow

reading of these provisions.
[1 05] I begin by reiterating that the LSUC's decision, including the LSUC's
interpretation of its home statute, is subject to review on a reasonableness
standard. As the Divisional Court said, at para. 37:
The respondent was uniquely qualified to determine
how the public interest, as it relates to the regulation of
the legal profession in this Province, would be best
advanced. Its conclusion, in that regard, should
normally be evaluated on a standard of reasonableness,
as the decision in Saguenay itself points out. At para. 46
of that decision, Gascon J. said, in part:
... the Court noted that on judicial review of
a decision of a specialized administrative
tribunal interpreting and applying its
enabling statute, it should be presumed
that
the
standard
of
review
is
reasonableness [citations omitted].
[1 06] After TWU applied to the LSUC for accreditation of its proposed law
school, the LSUC commissioned a legal opinion from Ms. Kristjanson, a senior
and respected constitutional and administrative lawyer, now a judge of the
Superior Court. In a comprehensive letter dated April 4, 2014, Ms. Kristjanson
discussed the relationship between ss. 4.1 and 4.2 of the LSA. Her advice
included an analysis of the interpretation of the term "public interest" in the
context of those provisions:

Page:35

The next step in Convocation's analysis is to determine

what constitutes the "public interest" in the context of
the accreditation decision. This can be done by looking
at how the "public interest" has been interpreted in the
context of the LSA and how courts have approached
administrative decision-making in the "public interest"
more broadly. With respect to the LSA, courts have
determined that the Society must consider the members
of the public who utilize legal services, as well as the
public at large who may require legal services in the
future. The public interest mandate of the Society has
been relied on in the discipline jurisprudence as a
means to ensure that the public has access to quality
and reliable legal services, and that the public retains
trust in the legal community.

[T]he requirement of governing lawyers in the public

interest has been interpreted inter alia through a
number of reports to Convocation .... In the Society's
own materials, regulating in the public interest has been
understood as a mandate to integrate equity and
diversity values and principles into the Society's model
policies. services, programs and procedures ....
[Emphasis added.]
[1 07] The Divisional Court concluded on this issue as follows, at para. 58:
[T]he principles that are set out in s. 4.2, and that are to
govern the respondent's exercise of its functions, duties
and powers under the Law Society Act, are not
restricted simply to standards of competence. Rather,
they engage the respondent in a much broader
spectrum of considerations with respect to the public
interest when they are exercising their functions, duties
and powers, including whether or not to accredit a law
school.
[1 08] I agree with Ms. Kristjanson's analysis and the Divisional Court's
conclusion. There is no wall between ss. 4.1 and 4.2 of the LSA. The LSUC has

Page:36

an obligation to govern the legal profession in the public interest: see Groia v.

Law Society of Upper Canada, 2016 ONCA 471, at para. 89. In setting and
maintaining standards of learning, professional competence and professional
conduct under s. 4.1 of the LSA, the LSUC is entitled to do so against the
backdrop of the composition of the legal profession, including the desirable goal
of promoting a diverse profession.
[1 09] It follows that one of the LSUC's statutory objectives is to ensure the
quality of those who practise law in Ontario. Quality is based on merit, and merit
excludes discriminatory classifications. As explained by the Divisional Court, at
paras. 95-97, the LSUC over its long history has strived to remove discriminatory
barriers to access to the legal profession:
As we attempted to set out in our recitation of the
factual background of this case, the respondent has
been engaged in determining the requirements of a
legal education, necessary for the purposes of
qualifying individuals for admission to the Bar, for more
than 200 years.
[l]n carrying out its mandate under its enabling statute,
the respondent throughout its long history, has acted to
remove obstacles based on considerations, other than
ones based on merit, such as religious affiliation, race,
and gender, so as to provide previously excluded
groups the opportunity to obtain a legal education and
thus become members of the legal profession in
Ontario.
In keeping with that tradition, throughout those many
years, the respondent has acted to remove all barriers
to entry to the legal profession save one - merit.

Page:37

[11 0] That the LSUC is also subject to the Charter and the HRC means that
Charter and human rights values must inform how the LSUC pursues its stated

objective of ensuring equal access to the profession.

[111] In light of all the above, it was entirely appropriate for the LSUC to consider
this statutory objective, informed by the values found in the Charter and HRC,
when deciding whether to accredit TWU.
(c)

Balancing

[112] In assessing whether accreditation is in the public interest, the LSUC was
required to balance the statutory objectives of promoting a legal profession
based on merit and excluding discriminatory classifications with the limit that
denying accreditation would place on the appellants' religious freedom.
[113] The balancing of these two constructs necessarily involved the collision of
TWU's religious freedom and respect for LGBTQ equality rights. As in TWU
2001, at para. 37, ''the scope of the freedom of religion and equality rights that

have come into conflict in this appeal" needs to be reconciled.

[114] I have already concluded that the LSUC's decision not to accredit TWU's
proposed law school infringed TWU's religious freedom.
[115] I have no hesitation saying that TWU's admission policy, viewed in
conjunction with the Community Covenant, discriminates against the LGBTQ

Page:38

community on the basis of sexual orientation contrary to s. 15 of the Charter and

s. 6 of the HRC.
[116] As expressed by Iacobucci and Bastarache JJ. in TWU 2001, at para. 25,
the Community Covenant exacts a price on LGBTQ students:
Although the Community Standards are expressed in
terms of a code of conduct rather than an article of faith,
we conclude that a homosexual student would not be
tempted to apply for admission, and could only sign the
so-called student contract at considerable personal
cost.
[117] On the discrimination issue, the Divisional Court said, at paras. 112-14:
We accept that it is TWU's stated position that everyone
attending its institution is treated with fairness and
courtesy and open-mindedness. But it does not change
the fact that, notwithstanding TWU's stated benevolent
approach to the conduct of students and others at its
institution, in order for persons, who do not hold the
beliefs that TWU espouses, to attend TWU, they must
openly, and contractually, renounce those beliefs or, at
the very least, agree not to practise them. The only
other apparent option for prospective students, who do
not share TWU's religious beliefs, but who still desire to
obtain one of its coveted law school spots, is to engage
in an active deception, in terms of their true beliefs and
their true identity, with dire consequences if their
deception is discovered. TWU's technically correct
statement that it "does not ban or prohibit admission" to
LGBTQ students must be read and understood in this
context.
This reality is of particular importance for LGBTQ
persons because, in order to attend TWU, they must
sign a document in which they agree to essentially bury
a crucial component of their very identity, by forsaking
any form of intimacy with those persons with whom they

Page:39

would wish to form a relationship. Contrary to the

contention of the applicants, that requiring person[s] to
refrain from such acts does not intrude on the rights of
LGBTQ persons, it is accepted that sexual conduct is an
integral part of a person's very identity. One cannot be
divorced from the other. As Rothstein J. said in
Saskatchewan (Human Rights Commission) v.
Whatcott, [2013] 1 S.C.R. 467, at para. 124:
Courts have thus recognized that there is a
sexual
strong
connection
between
orientation and sexual conduct. Where the
conduct that is the target of speech is a
crucial aspect of the identity of the
vulnerable group, attacks on this conduct
stand as a proxy for attacks on the group
itself.
That is the reality with which the respondent was faced.
It was essentially asked to approve and accept students
from an institution that engaged in discrimination
against persons who did not share the religious beliefs
that were held by TWU, and the student body that it
prefers to have at its institution.
[118] In their factum, the interveners Out on Bay Street and OUTlaws say:
15. The Covenant is not merely an expression of
TWU's beliefs. The Covenant is a document that
discriminates against LGBTQ persons by forcing them
to renounce their dignity and self-respect in order to
obtain an education.

17. LGBTQ persons applying to TWU, or who come

out while at TWU, will experience the stigma of not
belonging and other destructive effects of regulating
queer sexuality.
[119] I agree with, and adopt, these statements by the Supreme Court of
Canada, the Divisional Court, and the interveners Out on Bay Street and

Page:40

OUTlaws. My conclusion is a simple one: the part of TWU's Community

Covenant in issue in this appeal is deeply discriminatory to the LGBTQ
community, and it hurts.
[120] Against this backdrop of a laudatory statutory objective of nondiscrimination and its collision with freedom of religion, I turn to the appellants'
principal submission on the reasonableness of the LSUC's decision.
[121] The appellants contend that a review of the opposed benchers' speeches
at Convocation, which presumably justified their vote against accrediting TWU,
demonstrates that many of them ignored their legal obligation, per Dore, to
balance the appellants' Charter rights with the laudatory statutory objectives.
[122] I do not accept this submission. Before turning to the benchers' speeches,
I want to say a contextual word about the process that led to the decision on April
24, 2014. In my view, the process adopted by the LSUC to consider TWU's
application was excellent. The record consisted of TWU's application and
supporting material, the relevant reports of the Federation of Law Societies of
Canada, three legal opinions designed to provide guidance to the benchers in
their deliberative process, and approximately 210 submissions from members of
the profession and the public.
[123] Moreover, the actual decision-making process took place in two stages. On
April 10, Ms. Kristjanson addressed Convocation on procedural fairness issues.

Page:41

Representatives of TWU were present and many benchers posed questions

about TWU's application. Then TWU prepared and submitted a written reply to
the questions.
[124] On April 24, Mr. Kuhn, TWU's President, was permitted to address
Convocation, which he did for almost an hour and a half. Then, over a four and a
half hour period, 29 benchers made speeches - of necessity, quite brief - on the
resolution. Those speeches, as I read them, were thoughtful, respectful, and
even eloquent. A full reading of the 29 speeches leaves a reader impressed. The
benchers knew that they were making an historic decision - bencher Peter
Wardle began his speech with the observation "I found this a difficult decision,
professionally, personally, morally, and as a practising Catholic" - and their
remarks befit the occasion.
[125] I turn to the benchers' speeches. The benchers had been given specific
advice about the Dore analytical framework in one of the legal opinions. In my
view, even without making allowances for the necessary brevity of the speeches,
it is clear that the benchers, on both sides of the issue, engaged in a fair
balancing of the conflicting rights. I cite but a few examples:
Bencher Mercer
The issue before Convocation today raises fundamental
principles: freedom of religion, freedom of association,
equality rights and the rule of law.

Page:42

Justice LeBel for the court in Dare asked the question,

how then does an administrative decision maker, which
we are, apply Charter values in the exercise of statutory
discretion? And to be clear, we're exercising statutory
discretion. Justice LeBel said the decision maker should
first consider the statutory objectives, and I think that is
fundamental to the exercise before us and I think we
have to think long and hard about the statutory
objectives pursuant to which we must decide.
Justice LeBel then went on to say that the decision
maker should ask how the Charter values at issue will
be best protected in view of the statutory objectives.
This requires the decision maker to balance the severity
of the interference with Charter protection with statutory
objectives.

It seems to me to follow that freedom to control the

conduct of others, including the sexual conduct of
others, would be worthy of even lesser protection. I
think this might properly be part of the Dare analysis.
Bencher Wardle
I accept that TWU as a religious institution has certain
rights, the right of freedom of association, and the right
to practice their beliefs sincerely held, and I don't think
anybody here believes that those rights shouldn't be
respected and I don't think anybody believes the TWU
adherents do not sincerely believe they're right.

[T]here are other fundamental rights at stake, and those

rights are the right of gay, lesbian, bisexual and
transgender persons to have access, unfettered access
to an institution that can give them a law degree and
ultimately access to this great profession.
Bencher Bredt

Page:43

What does the law tell us about how we are to balance

the right not to be discriminated against on the basis of
sexual orientation with TWU's right to freedom of
religion?

Bencher Minor
When the courts tell us - and, in fact, TWU reminded us
that we need to balance here and they said they didn't
hear much balancing. Well, when we're balancing, what
the court says is you first must look at the context in
which you're balancing and the context here is the
availability of professional spaces; that is to say, spaces
in professional schools.

So, in my submission, there is no compelling reason to

afford the claim for religious rights or religious freedom
a higher acknowledgment than the rights of those who
would enter into the law school process eventually to
enter into our licensing program. And in my mind, that is
balancing, that is how I would do it.
[126] It is true that not all of the benchers engaged in precisely this style of
reasoning that is explicitly faithful to the Dore analytical framework. However, all
the benchers had received and reviewed a legal opinion on this topic and
everyone heard all the speeches. I agree with the Divisional Court's comment, at
para. 103:
The speeches are not read fairly by treating them as if
they were reasons of a court where all competing
arguments may be recited, or by reading an individual
speech in isolation from the debate in which it took
place. The Benchers were all well aware of the clash

Page:44

between religious rights and equality rights that the

question before them presented.
[127] Indeed, focusing on the benchers' speeches in minute detail, as suggested
by the appellants, misses the bigger picture. As the Divisional Court held, at
para. 50, the vast majority of benchers are democratically elected (or, in the case
of lay benchers, appointed to office by the provincial government) and they made
their decision after undertaking a democratic process. The Supreme Court stated
in Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1
S.C.R. 5, at para. 29:
To demand that councillors who have just emerged from
a heated debate on the merits of a bylaw get together to
produce a coherent set of reasons is to misconceive the
nature of the democratic process that prevails in the
council chamber. The reasons for a municipal bylaw are
traditionally deduced from the debate, deliberations and
the statements of policy that give rise to the bylaw.
The same comments apply equally to benchers. The LSUC's decision must be
assessed from the record as a whole, not from individual speeches.
[128] Accordingly, I reject the appellants' argument on this point.
[129] Having rejected the appellants' principal submission on the balancing
issue, the ultimate question still remains: was the LSUC's decision or the
outcome (Dunsmuir, at para. 47) reasonable within the parameters set by

Dunsmuir, Ryan and Dare? In my view, the answer to this question is 'Yes',
indeed 'Clearly yes'. I say this for several reasons.

Page:45

[130] First, the LSUC is one of two sets of gatekeepers to entry into the legal
profession. Law schools are the first set of gatekeepers; law societies are the
second.
[131] In a well-known speech in 1986 - "Legal Education", (1986) 64:2 Can. Bar
Rev. 374, at p. 377- Dickson C.J. said this about the first set of gatekeepers:
I want to say a few words about the gatekeepers to
legal education, namely those involved in the
admissions process. Those who fulfill that role are, in a
real sense, the gatekeepers of the legal profession.
Ultimately, the ethos of the profession is determined by
the selection process at law schools. In order to ensure
that our legal system continues to fulfill its important role
in Canadian society, it is necessary that the best
candidates be chosen for admission to law schools.
Furthermore, it is incumbent upon those involved in the
admission process to ensure equality of admissions ....
Canada is a country which prides itself on adherence to
the ideal of equality of opportunity. If that ideal is to be
realized in our profession then law schools, and
ultimately the legal profession, must be alert to the need
to encourage people from minority groups and people
from difficult economic circumstances to join our
profession.
[132] In my view, there is also an important role for the second set of
gatekeepers, the law societies, in ensuring equality of admission to the legal
profession. There is nothing wrong with a law society, acting within its
jurisdiction, scrutinizing the admission process of a law school in deciding
whether to accredit the law school. In doing so with respect to TWU's application,
the LSUC could pay heed to what Iacobucci and Bastarache JJ. said in TWU

Page:46

2001, at para. 25: "a homosexual student would not be tempted to apply for

admission, and could only sign the so-called student contract at considerable
personal cost." As well, the LSUC could take account of the fact that all law
schools currently accredited by it provide equal access to all applicants in their
admissions processes. An accredited TWU would be an exception.
[133] Second, as the Divisional Court noted, at para. 110, "while TWU may not
be subject to the HRC, the respondent is." Accordingly, in balancing the various
rights at issue, the LSUC could attach weight to its obligations under s. 6 of the
HRC, which provides:

Every person has a right to equal treatment with respect

to membership in any trade union, trade or occupational
association or self-governing profession without
discrimination because of race, ancestry, place of origin,
colour, ethnic origin, citizenship, creed, sex, sexual
orientation. gender identity, gender expression, age,
marital status, family status or disability. [Emphasis
added.]
[134] Third, there is an important distinction to be made when a religious
institution and its members seek to exercise their religious beliefs in a manner
that discriminates against others. In her article "TWU Law: A Reply to Proponents
of Approval", (2014) 37:2 Dal. L. J. 621, Professor Elaine Craig said, at p. 646:
The deficiencies with TWU's proposed program do not
flow from its Christian worldview or intention to teach
from that perspective. ... Many worthy and highly
esteemed educational institutions such as St. Francis
Xavier, Trinity College at the University of Toronto, and
Notre Dame in the United States, have a faith-based

Page:47

tradition. The distinction, and it is an important one, is

that these institutions do not impose formal policies that
discriminate on the basis of sexual orientation.
[Emphasis added.]
[135] As I have explained, TWU's Community Covenant discriminates against
members of the LGBTQ community, and the LSUC was entitled to consider
whether the discriminatory policy precluded accreditation.
[136] The American experience provides an apt example of the distinction
between state action that interferes with religious belief itself and state action that
denies a benefit because of the impact of that religious belief on others. In Bob
Jones University v. United States, 461 U.S. 574 (1983), the Internal Revenue

Service ("IRS") took away Bob Jones University's tax-exempt status because of
its discriminatory admissions policy. The school denied admission to any black
students until 1971. After 1971, black students were admitted, but only if they
were married. Bob Jones University's sponsors believed that the Bible forbids
interracial dating and marriage.
[137] Chief Justice Burger held that Bob Jones University's sincerely held
religious beliefs did not immunize it from the application of the IRS policy of
denying tax-exempt status to educational institutions with discriminatory
admissions policies. Integral to the Chief Justice's opinion was the compelling
government interest in eradicating racial discrimination in education. He also held
that the government, by granting exemptions, was in effect making taxpayers

Page:48

indirect or vicarious donors to Bob Jones University. Bob Jones University's

admissions policy was at odds with the "common community conscience" and
therefore the conferral of a public benefit could not be justified.
[138] TWU, like Bob Jones University, is seeking access to a public benefit- the
accreditation of its law school. The LSUC, in determining whether to confer that
public benefit, must consider whether doing so would meet its statutory mandate
to act in the public interest. And like in Bob Jones University, the LSUC's
decision not to accredit TWU does not prevent the practice of a religious belief
itself; rather it denies a public benefit because of the impact of that religious
belief on others- members of the LGBTQ community.
[139] Fourth, I agree with the intervener Lawyers' Rights Watch Canada that
international human rights law, and especially international treaties and other
documents that bind Canada, is relevant in assessing the reasonableness of the
LSUC's decision. In that vein, I note that Article 18(3) of the International

Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.Y.S. 171,
Can. T.S. 1976, provides:
Freedom to manifest one's religion or beliefs may be
subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order,
health, or morals or the fundamental rights and
freedoms of others. [Emphasis added.]

Page:49

[140] In my view, the LSUC's balancing in its accreditation decision was faithful
to this article of an important international law document to which Canada is a
signatory.
[141] Fifth, I agree with Professor Bruce Ryder who wrote, in "State Neutrality
and Religious Freedom" (2005), 29 Sup. Ct. L. Rev. (2d) 168 at 173:
Religious neutrality does not mean that the state must
refuse to take positions on policy disputes that have a
religious dimension. Many if not most legislative policies
will accord with some religious beliefs and violate
others.
[142] Thus, the LSUC did not violate its duty of state neutrality by concluding that
the public interest in ensuring equal access to the profession justified a degree of
interference with the appellants' religious freedoms. It was entitled to take a
position. And, for the reasons given above, the position it took was a reasonable
one.
[143] Taking account of the extent of the impact on TWU's freedom of religion
and the LSUC's mandate to act in the public interest, the decision to not accredit
TWU represents a reasonable balance between TWU's 2(a) right under the
Charter and the LSUC's statutory objectives. While TWU may find it more difficult

to operate its law school absent accreditation by the LSUC, the LSUC's decision
does not prevent it from doing so. Instead, the decision denies a public benefit,
which the LSUC has been entrusted with bestowing, based on concerns that are
entirely in line with the LSUC's pursuit of its statutory objectives.

Page: SO

E.

DISPOSITION

[144] The vote at Convocation was 28-21, with one abstention. In the context of
a comprehensive and very fair decision-making process, the closeness of the
vote brings to mind what the Supreme Court of Canada said in Dunsmuir, at
para. 47:
[C]ertain questions that come before administrative
tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number
of possible, reasonable conclusions.
[145] I am satisfied that the LSUC's decision not to accredit TWU was indeed a
reasonable conclusion. I would therefore uphold the Divisional Court's decision.
[146] Accordingly, I would dismiss the appeal. The respondent is entitled to its
costs of the appeal, if sought.

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